Alan Weiss

Both MSK and his brother MAK had sex with the victim

Neither the offender’s mental health nor the paternalistic culture in which he was raised mitigated his involvement in multiple sexual assaults

Three brothers, one a juvenile, were sentenced on four sexual assault charges after being found guilty in a trial. He entered a guilty plea to a fifth charge. The judge explained MSK’s sentence in R v MSK [2006] NSWSC 237.

MSK’s offences

MSK was found guilty of four counts of having sexual intercourse with the victim without her consent in violation of section 61J of the Crimes Act. Each count carried a maximum sentence of 20 years. MSK also entered a guilty plea to the same crime involving a different victim.

The first victim was 14 years old. She went to the brothers’ house to attend a party with a friend. She did not know the brothers. She drank a significant amount of alcohol and became intoxicated.

Both MSK and his brother MAK had sex with the victim. The first two counts against MSK involved acts that were committed by MAK with MSK’s encouragement. MSK then had sexual intercourse with the victim, as reflected in the guilty verdict on the third count. The fourth count involved MSK being in the company of an unidentified man who also had sexual intercourse with the victim in the bedroom. The fact that the crimes were part of a “joint criminal enterprise” involving three men was an aggravating factor.

MSK later entered a guilty plea to having sexual intercourse with a 13 year old victim without her consent. That offence, which included threats of violence, occurred shortly after the victim had consensual intercourse with one of MSK’s brothers.

Other Facts Affecting MSK’s Sentence

After the crimes described above, but before MSK was arrested for them, MSK committed several other sexual assaults. He was given a 22 year sentence for those crimes before he was sentenced on the charges described here.

MSK is from Pakistan. He has a wife and son who moved to Australia after his arrest. He planned to make Australia his permanent residence.

The court heard evidence that MSK suffers from a mental illness that produces delusions. Specifically, he claims he hears the voice of Satan commanding him to do bad things. His father, who is a physician, prescribed anti-psychotic medications but MSK did not bring them to Australia. MSK attributes the offences to psychotic episodes. He said the voice that commanded him to sexually assault the victims became more intense after he drank alcohol.

The defence also attributed the crime to MSK’s upbringing in a strict tribal culture that condemns female promiscuity. The culture encourages men to punish women who are perceived as engaging in provocative dress or behaviour. Women who disobey their culture’s honour code are deemed available for the sexual gratification of men, regardless of their desires. The culture accepts and encourages male dominance of women. MSK was therefore acculturated to believe that the girls were promiscuous and had no right to resist his advances.

The court’s decision

While acknowledging that an offender’s mental health and culture could both be relevant sentencing considerations in an appropriate case, the judge concluded that neither MSK’s claim that voices commanded him to assault the girls nor his cultural heritage played a role in his crimes. The judge simply did not believe that MSK experienced auditory hallucinations, and MSK’s extensive residence in the country was sufficient to make him aware of Australian laws and cultural norms. Regardless of how he was raised in Pakistan, the judge was certain that MSK understood that Australia would regard the sexual assault of teenage girls as a serious offence.

The judge did not believe that MSK was truly remorseful. On the other hand, given his relative youth, the judge accepted that MSK might have some hope for rehabilitation. The judge nevertheless determined that MSK should spend a lengthy time in custody followed by a lengthy time on parole supervision. The judge noted that MSK is already serving a 22 year sentence that includes a non-parole period of 16 1/2 years. The judge imposed sentences on the four new offenses that effectively increased the total sentence MSK will serve to 28 years with a non-parole period of 22 years.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.